Citation Nr: 0509730
Decision Date: 04/01/05 Archive Date: 04/15/05
DOCKET NO. 98-15 831 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada
THE ISSUE
Entitlement to a rating in excess of 10 percent for a low
back disorder.
(The issue of entitlement to an effective date earlier than
May 29, 1990, for an award of special monthly compensation is
the subject of a separate Board of Veterans' Appeals
decision.)
ATTORNEY FOR THE BOARD
T. L. Douglas, Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
June 1966 to June 1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 1998 rating decision by the
Reno, Nevada, Regional Office (RO) of the Department of
Veterans Affairs (VA), which, in essence, established service
connection for a low back disorder as directed by a February
1998 Board decision. The Board, in that decision, found the
preponderance of the evidence was against the claim that any
current low back disorder was entirely caused by his service-
connected disabilities, but that the medical evidence of
record established a back disorder had been aggravated by the
veteran's service-connected disabilities. Secondary service
connection was granted only to the extent of that
aggravation.
Records show the veteran withdrew his request for a Board
hearing by correspondence dated in March 1999. See 38 C.F.R.
§ 20.702 (2004). The Board, in pertinent part, remanded the
issue on appeal to the RO for additional development in
March 2000 and again in June 2004.
The Board notes that the veteran is unrepresented as to the
issue listed on the title page of this decision.
Correspondence from the veteran's attorney dated in June 2001
established limited representation for the specific issue of
entitlement to an effective date earlier than May 29, 1990,
for an award of special monthly compensation. Therefore,
that matter is addressed in a separate Board decision.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required on his part.
REMAND
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA) (codified at 38 U.S.C.A. § 5100 et seq.) became
law. Regulations implementing the VCAA have been published.
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA and
the implementing regulations apply in the instant case. A
review of the record shows the veteran was notified of the
VCAA as it applies to his present appeal by correspondence
dated in March 2004.
In the February 1998 decision by the which the Board held
that the medical evidence of record established that the
veteran's back disorder had been aggravated by his service-
connected disabilities, the Board noted that service
connection was then in effect for two disabilities of the
right lower extremity: incomplete paralysis of the right
peroneal nerve and residuals of a right knee injury. The
Board found that there was no complaint, finding or diagnosis
of any low back injury or disease prior to 1975, when the
veteran sustained a low back injury when he fell and struck
his back on a bus fare box. The veteran was seen for severe
low back pain following the August 1975 injury. Marked
changes of tenderness, muscle spasm, and limitation of motion
of the lumbar spine were shown. Acute lumbosacral strain was
diagnosed. There is no indication that the veteran ascribed
his back injury in any way to a lower extremity problem.
Further, there was no evidence that he walked with a limp or
otherwise walked with an altered gait prior to the 1975 back
problem. In any event, the evidence of record clearly
indicates that the back problem was caused by an injury, not
altered gait.
The Board in the 1998 decision found that the veteran's first
report of right lower extremity dysfunction causing low back
injury was in May 1982, when he stated that the right leg
gave way and caused a low back injury in December 1980. The
Board noted that a January 1981 accident report pertaining to
the December 1980 injury indicated that he slipped on grease
or water. No right lower extremity dysfunction was
implicated in the fall. As with the 1975 incident, the
veteran's 1980 back problem was ascribed to a fall, and an
altered gait was not identified or implicated in any way at
the time. The first medical opinion evidence that any low
back disorder was due to a service connected disability was
provided by two physicians in January 1991. These physicians
indicated that the veteran's back problem was due to altered
gait.
The Board in the February 1998 decision stated that medical
evidence had not shown frank giving way or gait abnormality
of the right lower extremity to confirm the veteran's
subjective reports. The right lower extremity examinations
in September 1993 and February 1994 showed no instability or
gait abnormality. There has been no contemporaneous medical
evidence for treatment of injuries that involved giving way
of the right lower extremity. A medical opinion concerning
the etiology of the veteran's back disability based on the
entire medical record was rendered by a fee basis physician
in February 1997. The physician discounted a causal
connection between the veteran's low back disorder and his
service-connected lower extremity disorders.
The Board in the 1998 decision held that there was no
evidence of an altered gait prior to the initial occurrence
of back pathology in 1975; that there was strong evidence
that the veteran's back problems were caused by falls in 1975
and 1980, in which altered gait was not implicated; that
there has been no explanation from the veteran's physicians
as to how, exactly, the altered gait mechanics would cause
the currently identified back disability; and that the
physician who reviewed the records in February 1997 concluded
that the veteran's low back disorder was most likely on a
degenerative basis. Significantly, the physician went on to
indicate that the back disorder "possibly could have been
the primary condition causing the lower extremity process . .
. ." In other words, the altered gait followed the back
injuries, rather than vice-versa.
However, the Board noted that the private physician in April
1993 and the February 1997 fee basis physician both alluded
to the possibility of aggravation of the back disorder by the
service-connected right leg problems. The Board concluded
that record supported a grant of service connection for a
back disability to the extent, and only to the extent, that
it was aggravated by the service-connected right lower
extremity disabilities.
In a May 1998 rating decision the RO established service
connection and assigned a 10 percent disability rating
effective from April 18, 1983. The veteran subsequently
perfected his appeal as to the assigned rating.
The United States Court of Appeals for Veterans Claims
(Court) has held that separate or "staged" schedular
disability ratings may be assigned subsequent to an initial
award of service connection based upon the facts in each
case. See Fenderson v. West, 12 Vet. App. 119 (1999).
Therefore, it is incumbent upon VA in this case to
demonstrate both that the veteran's nonservice-connected back
disability was only aggravated by 10 percent as a result of
his service-connected disabilities and whether any
demonstrable period of disability exacerbation since April
18, 1983, was a result of his service-connected disabilities.
In the March 2000 remand order the Board instructed the RO to
make the veteran's claims folder available to an appropriate
specialist for review and opinions as to the nature and
extent of his service-connected low back disorder from 1983
to the present and the degree of back impairment due to
aggravation by service-connected right lower extremity
disabilities over the years since 1983. The physician was
also requested to reference and explain any periods of
exacerbation or remission during the period in question.
Similar requests for medical opinions were made in a
June 2004 Board remand. Although the veteran underwent VA
examinations in August 2003 and August 2004, the Board finds
the requested and necessary opinions have not been provided.
The Court has held that a remand by the Board confers on the
veteran or other claimant, as a matter of law, the right to
compliance with the remand orders. See Stegall v. West, 11
Vet. App. 268 (1998). Therefore, the issue must be remanded
for appropriate action in accordance with the Board's
instructions.
The Board also notes that during the course of this appeal
the regulations for rating disabilities of the spine were
revised effective September 23, 2002, and effective September
26, 2003. See 67 Fed. Reg. 54345 (Aug. 22, 2002) and 68 Fed.
Reg. 51454 (Aug. 27, 2003). VA's General Counsel, in a
precedent opinion, has held that when a new regulation is
issued while a claim is pending before VA, unless clearly
specified otherwise, VA must apply the new provision to the
claim from the effective date of the change as long as the
application would not produce retroactive effects.
VAOPGCPREC 7-2003 (November 19, 2003). The revised amended
versions may only be applied as of their effective date and,
before that time, only the former version of the regulation
may be applied. VAOPGCPREC 3-2000 (Apr. 10, 2000).
Accordingly, this matter is REMANDED to the RO for the
following:
1. The veteran's claims folder should be
reviewed by an appropriate medical
specialist. The following questions must
either be addressed by the examiner or a
specific statement as to why an opinion
cannot be given must be provided:
(a) The examiner should provide an
opinion, to the extent possible, as
to the severity of the veteran's low
back disability prior to aggravation
by his service-connected
disabilities, including his right
lower extremity disability.
(b) The examiner should provide an
opinion as to the degree of back
impairment due to aggravation by the
service-connected disabilities over
the years since April 18, 1983,
preferably described in terms of
demonstrated symptom manifestations
such as additional limitation of
motion or additional neurologic
impairment. The examiner is
requested to reference and explain
any periods of exacerbation or
remission during the period in
question.
The claims folder must be available to,
and reviewed by, the physician. If
opinions regarding these matters cannot
be formulated without resort to pure
speculation or for any other reason, the
examiner must provide a statement
explaining why the opinions cannot be
provided.
2. After completion of the above and any
additional development deemed necessary,
the RO should review the issue on appeal.
If the benefit sought remains denied, the
veteran and his representative should be
furnished an appropriate supplemental
statement of the case and be afforded the
opportunity to respond. Thereafter, the
case should be returned to the Board for
appellate review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
_________________________________________________
Gary L. Gick
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).